Objectivity in law – the institutional approach as an alternative to the dominant theories

Paweł Skuczyński — Thu, 20 Sep 2018 20:24:53 +0000

Dr Maciej Pichlak

University of Wrocław

English abstract: The aim of the paper is to establish a theoretical elaboration of objectivity in law which would conform exiting linguistic practices in the legal field. It starts from a brief characterization of legal practice in this respect which allows for an exposure of semantic complexity of the term ‘objectivity’ in law. The term is said to take two basic meanings: objectivity as a fact and objectivity as a moral ideal. On this ground requirements towards a reliable theory of legal objectivity are defined: such a theory should not only make o room for both distinct meanings of legal objectivity, but also should consider their mutual relations. These requirements stemming from existing linguistic practice serve as criteria for examination of up to date theoretical concepts of objectivity. The paper discusses realistic, conventionalist, and idealistic theories of objectivity in law subsequently and exposes shortcomings of each of these. Eventually, key assumptions of an institutional theory of objectivity are presented which is claimed to offer a plausible understanding of objectivity in law in both its factual and ideal aspects.

Keywords: objectivity, institutional theory, realism, conventionalism, idealism

Language: Polish

Published: Number 2(9)/2014, pp. 108-124

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Are we all feminists now’’? The Challenge of Feminist Jurisprudence to Traditional Legal Theory

Paweł Skuczyński — Thu, 20 Sep 2018 19:49:11 +0000

Dr Lidia Rodak

University of Silesia

English abstract: The potential of Feminist Jurisprudence is mainly built on its criticism of Traditional Jurisprudence. Through the deconstruction of the latter’s main categories such as objectivity, justice, equality, and rationality, Feminist Jurisprudence aims to demonstrate that Traditional Jurisprudence tends to mask inequality, exclusion and lack of recognition rather than beingable to bring about change or provide the values under research. What is more, FJ indicates a wide range of topics that are not explored by Traditional Jurisprudence and thus have nochance to be dealt with using traditional tools. As a result, Feminist Jurisprudence provides a separate language, a different epistemology and methodological tools that can broaden access to justice including all subjects by giving them recognition. What follows from thesetwo approaches to jurisprudence and two distinct sets of epistemological assumptions is a different understanding of the subject and a different vision of social relations. As Feminist Jurisprudence convincingly shows, traditional law, with its inclination for objectivity defends legal norms as part of the legal and social order rather than an individual autonomy and integrity of subjects. In this paper I would like to suggest a middle-way solution going beyondthe dualistic categories of objectivity and subjectivity. The proposal calls for a deep structuralchange of the legal discourse as the only one that really matters from the feminist point of view.

Keywords: Feminist Jurisprudence, traditional jurisprudence, objectivity, subjectivity